Sharp v. Bivona

• Decision Date: 26 January 2004
• Docket Number: No. 03 CV 895(ADS)(ETB).,03 CV 895(ADS)(ETB).
• Citation: 304 F.Supp.2d 357
• Parties: Linda SHARP and Sharp Realty, LLC, Plaintiffs, v. John C. BIVONA, Neil R. Cahn, Kenneth J. Glassman, Michael Sharp, and John Doe # 1 through # 10, these names being fictitious, the actual names and addresses being unknown, each named party individually and jointly and in their official capacity, if any, Defendants.
• Court: U.S. District Court — Eastern District of New York

304 F.Supp.2d 357

Linda SHARP and Sharp Realty, LLC, Plaintiffs, v. John C. BIVONA, Neil R. Cahn, Kenneth J. Glassman, Michael Sharp, and John Doe # 1 through # 10, these names being fictitious, the actual names and addresses being unknown, each named party individually and jointly and in their official capacity, if any, Defendants.

No. 03 CV 895(ADS)(ETB).

United States District Court, E.D. New York.

January 26, 2004.

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COPYRIGHT MATERIAL OMITTED

Linda Sharp, Huntington Station, NY, Pro Se.

New York State Attorney General's Office, Mineola, NY by Ralph Pernick, Assistant Attorney General, for the Defendant John C. Bivona.

Kenneth J. Glassman, New York, NY, Pro Se.

Newman & Cahn, LLP, Carle Place, NY (Neil R. Cahn, of Counsel), for the Defendants Neil R. Cahn, and Michael Sharp.

MEMORANDUM OF DECISION AND ORDER

SPATT, District Judge.

On February 24, 2003, Linda Sharp ("Sharp" or the "plaintiff") and Sharp Realty, LLC ("Sharp Realty"), a limited liability corporation incorporated under the State of New York, commenced this action against John C. Bivona ("Bivona"), Neil R. Cahn ("Cahn"), Kenneth J. Glassman ("Glassman"), and her husband Michael Sharp ("husband"), alleging 16 causes of action. Presently before the Court are the following motions: (1) a motion by defendant Bivona to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("Fed. R. Civ.P."); and (2) a motion by defendant Glassman for summary judgment dismissing the complaint.

I. BACKGROUND

The following facts are taken from the complaint which the Court notes is redundant and somewhat confusing. In 1999, Michael Sharp commenced a matrimonial action against the plaintiff in the Suffolk County Supreme Court. The complaint describes various incidents from the divorce proceedings involving an apartment complex in Brooklyn that the plaintiff and Michael Sharp purchased with their marital assets in 1995.

Sharp claims that, on March 1, 2001, there was a "backroom deal made in the chambers of Justice Daniel J. Loughlin ... in which full control of the family business surreptitiously was turned over to [her] husband" Michael Sharp without the plaintiff's knowledge and consent. Sharp further claims that this "backroom deal" was implemented by Michael Sharp, his attorney Cahn, and her attorney Glassman so as "to deprive the plaintiff of monies attributable to the Brooklyn property."

The plaintiff further alleges that, although Glassman was the plaintiff's attorney in the divorce proceedings, he was appointed as receiver as a result of the "backroom deal." Sharp contends that Glassman refused "to provide an accounting of his financial activities as receiver with respect to gross receipts, business expenditures, and the like...." The plaintiff further claims that, in October or November 2001, Justice Loughlin signed an ex parte order authorizing Glassman to continue to serve as receiver. On an unspecified date, after the plaintiff objected in open court to the "backroom deal" and the ex parte order, Justice Loughlin recused himself. Shortly thereafter, without any explanation, two other justices recused themselves from the plaintiff's matrimonial proceedings. Finally, the divorce action was reassigned to Justice John C. Bivona.

Sharp alleges that Justice Bivona knew that Cahn and Glassman were misappropriating funds from the marital business. In August 2002, Justice Bivona issued an order relieving a temporary receiver, Harvey McClelland, who had been appointed by Justice Loughlin, and a second order appointing a new temporary receiver, Everett W. George. Despite these orders, the plaintiff claims that Justice Bivona permitted Glassman to act as receiver until December 2002. Sharp further alleges that Justice Bivona knew that Glassman collected but failed to account for receivership assets; dissipated assets of the marital accounts; failed to provide her with information; failed to account or make disclosures to the court; and failed to deposit receivership funds in an interest-bearing account.

In addition, the plaintiff asserts that "on November 14, 2002, January 6, 2003, January 15, 2003, January 27, 2003, [the] Defendant John Bivona failed to be patient, dignified, and courteous to [the plaintiff but] instead [sic] threatened her, subjected her to mistreatment and possible dispossession of property contrary to his responsibilities...." She also claims that Justice Bivona "failed to order complete and full discovery ... and failed to take or initiate appropriate disciplinary measures against [the] lawyers in this case for unprofessional conduct" and deprived the plaintiff of her "appellate due process rights." Furthermore, Sharp alleges that between November 2002 and January 2003, Justice Bivona initiated several ex parte communications with the other defendants.

Among other things, the plaintiff alleges a cause of action for fraud and claims that she was denied due process and equal protection. Sharp seeks monetary damages in the amount of more than $58,000,000 and also seeks an injunction against Justice Bivona preventing him from presiding over her divorce proceeding.

II. DISCUSSION

A. As to Glassman's Motion for Summary Judgment

As an initial matter, the Court notes that Glassman's papers in support of his motion for summary judgment are not in compliance with Local Rule 7.1 which reads:

Except as otherwise permitted by the court, all motions and all opposition thereto shall be supported by a memorandum of law, setting forth the points and authorities relied upon in support of or in opposition to the motion, and divided, under appropriate headings, into as many parts as there are points to be determined. Willful failure to comply with this rule may be deemed sufficient cause for the denial of a motion or for the granting of a motion by default.

This Rule is not a mere formality. Rather, this rule must be observed to inform a party of the factual basis of his adversary's arguments. In addition, in failing to comply with this rule, it places the burden on the Court to construct the legal arguments and to conduct the legal research that is the responsibility of the parties. See V.W. Broad v. DKP Corp., No. 97 CV 2029, 1998 WL 516113, *3, 1998 U.S. Dist. LEXIS 12942, at *3 (S.D.N.Y. Aug. 19, 1998) ("Plaintiff's failure to oppose [the motion at issue] would require the [the Court] to construct plaintiff's legal arguments for him in order to reach the merits of defendant's motion. This is an unacceptable burden to place upon a court."). Thus, because of Glassman's noncompliance with Local Rule 7.1, his motion for summary judgment is denied without prejudice with leave to refile upon compliance with the Local Rules and the Court's Individual Rules.

B. As to Justice Bivona's Motion to Dismiss

1. Standard of Review for Motion to Dismiss

a. Rule 12(b)(1)

When considering a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the Court may consider affidavits and other materials beyond the pleadings to resolve the jurisdictional question. See Robinson v. Gov't of Malaysia, 269 F.3d 133, 141 n. 6 (2d Cir.2001); Antares Aircraft, L.P. v. Fed. Rep. of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); Exch. Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir.1976). Under Rule 12(b)(1), the court must accept as true all material factual allegations in the complaint but will not draw inferences favorable to the party asserting jurisdiction. See Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998); Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir.1992). Hearsay statements contained in the affidavits may not be considered. See Kamen v. AT & T, 791 F.2d 1006, 1011 (2d Cir.1986).

b. Rule 12(b)(6)

In deciding a motion to dismiss under Rule 12(b)(6), a district court must "accept all of the plaintiff's factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Dangler v. New York City Off Track Betting Corp., 193 F.3d 130, 138 (2d Cir.1999) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." King v. Simpson, 189 F.3d 284, 287 (2d Cir.1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.1995)).

c. The Plaintiff's Pro Se Status

The Court is mindful that the plaintiff is proceeding pro se and that her submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers....'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam) (quoting Haines v Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)). District courts should "read the pleadings of a pro se plaintiff liberally and interpret them `to raise the strongest arguments that they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Nevertheless, the Court is also aware that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law...." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983) (internal quotations and citation omitted).

2. Rooker-Feldman Doctrine

To the extent that Sharp seeks to challenge the state court's determinations, this Court lacks subject matter jurisdiction to decide the claims under the Rooker-Feldman doctrine. See Rooker v. Fidelity Trust...